By Minahil Saleem and Maheen Nazir (Pakistan)

ABSTRACT

The right to life is the primary right of individuals. Only a living human being can practice other rights guaranteed under the contemporary human rights law. Unfortunately, this right has been widely affected by climate change and Environmental Pollution. Climate Change is defined by the Intergovernmental Panel on Climate Change (IPCC) as

“any change in the climate over time whether due to natural variability or a source of human activity”.

  It is a settled principle that where the life of any individual is to be taken, it must be legally sanctioned.

This inquiry aims to evaluate how climate change and Environmental Pollution deprive communities of the basic means of sustenance such as water, food, health, and housing and expose them to deadly crises threatening their right to life. It will dig deep into the potential grounds of accountability for extra-territorial and irreversible harm, constructing reliable enforcement mechanisms and allocating rights and duties among perpetrators and victims.  It also explores the opportunities to use contemporary Human Rights Law to protect one’s right to life against the detrimental consequences of climate change in times of peace as well as in war. Since a victim of climate change has limited legal remedies, this research will establish the need to create a separate International Court particularly dealing with Climate offences.  Moreover, the stagnant role of United Nations Security Council in restricting climate offences being a threat to international peace and security is also discussed. To substantiate and complete this study, a doctrinal research methodology will be adopted. The data will be gathered from international treaties, conventions, jurisprudence of national and international courts, and scholarly and academic writings.

THEME OF THE RESEARCH

This research is based on the grounds of convergence between International Human Rights Law and International Environmental Law. The study starts with a thorough introduction to the causes of climate change and environmental pollution and why the subject is appropriate for human rights analysis. The Second part discusses instances of climate-led disasters threatening the right to life with special reference to the recent climate trends in several jurisdictions that killed millions and deprived billions of basic needs. The Third Part focuses on the right to life and clean environment as articulated in international treaties, conventions and customary laws and climate litigation in different countries in recognition of these rights. It also addresses the issues of unequal climate suffering inflicted upon developing countries that contribute the least in global carbon emissions and analyzes whether climate compensation is a sufficient remedy or not. The Fourth Part is about state responsibility in International Law to restrict transboundary and irreversible climate damage. In this part, the researcher also tries to establish a link between International Environmental and International Humanitarian Law which offers other remedies to climate-vulnerable communities in times of peace as well as in war.  The fifth and final part will be conclusion on the findings of the research.

INTRODUCTION:

Climate change is the defining feature of the 21st century. Since the rise of industrialization, the global temperatures have rised by many folds due to greenhouse effect as well as the depletion of ozone layer. These phenomenons resulted into Global Warming which cause climate patterns to change. A changing climate leads to changes in the frequency, intensity, duration, and timing of extreme weather and climate events making the world prone to suffer catastrophic repercussions. However, it is not only industrial activities of developed countries that are to be blamed for global warming and climate change, rather armed conflicts and the extensive use of weapons and explosives also have severe consequences on air, water, and land pollution, degradation of ecosystems, including risks to neighboring countries. As monitored by UN Environment Programme (UNEP), the war in Ukrain has left a toxic legacy for generations to come.

In 2022, Mean global temperature have rised by 1.15°C above 1850-1900 average. The years 2015 to 2022 are recorded as the eighth warmest year in the history of the world.According to the most current report of the Intergovernmental Panel on Climate Change (IPCC), which was published in March 2023, the world may experience a rise in temperature of 1.5 degrees Celsius by the start of the 2030s. Ice sheets and glaciers have lost 30 meters of thickness since 1970.El Nio, a warming phenomena in the Pacific Ocean that occurs every two to seven years, has arisen in the tropical Pacific after seven years and is anticipated to last until March 2024, which only makes the situation worse. The return of El Niño is plunging much of the world into heatwaves which mean more natural disasters for climate vulnerable countries where climate crises is already inflicting incalculable and irreversible loss and injuries.

In Europe alone, total death toll associated with heat exceeded 15000 across spain, Germany, UK, France and Portugal.  Record breaking rains and extensive flooding in Pakistan culminated into 17000 deaths with 33 million people affected due to inflation, air and water borne diseases, food insecurity whereas 8 million people were displaced. Throughout Greece, Fires in the wild are raging due to the multiple wildfires burning in southern California, Death Valley, California, hit a record high temperature of 520 degrees Celsius. The loss and damage inflicted by Climate Change is a matter of Human Rights. The Climate disasters and its long term effects deprive people of life and the means of sustenance that are necessary to lead a healthy and properous life of dignity that is guaranteed under International Law as well as Constitutional Law. However, before analysing Climate Change with a human right approach, it is important to scientifically prove whether Climate change is natural or is it human intervention that is to be blamed for aggravating it?

CLIMATE CHANGE: NATURAL OR MAN-MADE?

A survey of 88,125 climate-related studies found that 99.9% of peer-reviewed scientific journals believe that humans are mostly to blame for climate change. Scientific data suggests that human actions (most notably the use of fossil fuels) have warmed the earth’s surface and ocean basins, influencing the planet’s climate.  According to the IPCC,

“The influence of human activity on the warming of the climate system has evolved from theory to established fact.”

Though old surveys and records indicate that climate volatility is caused by natural reasons such as variations in the sun, volcanoes, orbit, and CO2, there is strong evidence that the current rapid warming is not primarily caused by natural sources. Because solar production has been lower than it has been since the mid-twentieth century, it cannot explain the recent warming of the Earth. However, it might be claimed that human actions are mostly to blame for climate change. Here is how.  

Depending on the surface and atmosphere, sunlight can be absorbed or reflected when it touches the Earth. Light-colored surfaces, such as snow and clouds, tend to reflect the most sunlight, whereas darker surfaces, such as oceans and woods, absorb more.But human changes in land cover by way of deforestation, desertification and urbanisation have changed earth’s reflectivity. Less sunlight is absorbed, more is reflected back into the atmosphere but here another obstacle play role causing global warming. That obstacle is the Greenhouse effect.

The Green House effect is the process by which many greenhouse gases, including water vapor, methane, carbon dioxide, and ozone, block or reduce heat loss to space. These gases behave like a blanket, warming the earth. Without greenhouse gases, thermal energy collected and reflected from the Earth’s surface would simply escape back into space, leaving the planet at an uncomfortable temperature near to -19 C (2 F), rather than the current average surface temperature of 15 C (59 F). Since the beginning of the industrial revolution around 1750, human activities have significantly contributed to climate change by adding CO2 and heat-trapping chemicals to the atmosphere. According to a study released in 2022, CO2 and methane concentrations have increased by 50% and 162%, respectively, since 1750.  Though most greenhouse gases have limited lifetimes, CO2 remains in the atmosphere for a long time: 300 to 1000 years. As a result, climate change caused by CO2 emissions puts future generations equally vulnerable to its worst consequences.

In the above discussion, it becomes obvious that Climate Chanage is largely driven by human activities which make it appropriate for Human Rights Analysis.

CLIMATE CHANGE: A THREAT TO RIGHT TO LIFE?

It is a setteled principle that where the life of an individual is to be taken, it must be legally sanctioned. However, each year millions of people die in numerous disasters that occur due to unseen human activities, industrialization, GHG emissions. Whereas, billions are deprived of sustainable means of living in the long-run. These impacts includes chronic and air born diseasess such as cancer, asthama, viral infections, heart ailments etc, food insecurity, water scarcity and contamination, air pollution, forced migrations, hunger, poverty, inflation and so on.  People being exposed to these impacts are deprived of their right to health and hygeine which is indispensable for sustainable life. In this way Climate Change opens up a debate on the right to life. Recent trends of Climate disasters gulping down the lives of million of innocent individuals are discussed in this section to show how Climate Change threaten right to life.

Deadly Floods in Libya: Storm Daniel caused catastrophic flooding in the eastern Libyan city of Derna on September 11, 2023. Following the failure of two dams in Derna, massive flooding washed across entire neighborhoods in a number of coastal towns. Within two days of the inundation, the death toll in Libya had risen to 5000, with an estimated 10,000 more persons missing and roughly twice that many homeless.

Tropical Storm Mawar in Japan, Guam, Philipines and Taiwan: In May-June 2023, the extremely powerful typhoon (Tropical Storm) Mawar impacted Guam, the Philippines, Japan, and Taiwan. Mawar was the most powerful tropical cyclone to impact the United States since 2002, causing a $250 million economic loss. Despite the fact that no casualties have been reported, the typhoon could bring a life-threatening storm surge and up to 20 inches (50 cm) of rain to the island of 170,000 people.

Wildfires in Canada: In early June 2023, wildfires in Canada blanketed huge sections of North America in smoke and air pollution. The Canadian wildfire season erupted as a result of an extremely dry period followed by heatwaves. There were 907 active wildires, 599 of which were uncontrollable. The impacts of the wildfire could be seen as far away as Norway, while hundreds more Canadians have been displaced. The deterioration in air quality has made millions of people in Canada and America vulnerable to a variety of chronic ailments.

Cyclone Mocha in Mayanmar: Cyclone Mocha, which slammed Mayanmar in May 2023, proved to be the fiercest cyclone to ever hit the region. The hurricane caused widespread devastation, killing 145 people and destroying infrastructure, houses, schools, and businesses. According to the UN, the cyclone affected 800,000 people.

Flooding in South Sudan for Fourth Consecutive Year: In 2023, South Sudan had unprecedented flooding for the fourth year in a row, affecting approximately a million people. The country hasn’t had a dry season in nearly a decade, and nearly 47,700 km2 of the region is still under water.

Cyclone Freddy in Africa: A cyclone battered the south-eastern section of Africa from 6 February to 15 March 2023, hitting Malawi, Mozambique, Madagascar, and Zimbabwe. More than 1000 individuals have been killed, and 500,000 people have been displaced. The cyclone was so powerful that it set a new record for the world’s longest-running cyclone. The cyclone not only destroyed infrastructure but also washed away water and sanitation facilities, raising public health concerns at a time when cholera was already wreaking havoc in Malawi prior to the storms.

Heatwaves across Asia: A heatwave raged through Pakistan, China, India, Thailand, Laos, Bangladesh, and other countries in April 2023, with temperatures ranging from 38o to 45o Celsius. These heatwaves have an impact on 2 billion people, either directly through heat-related health and job issues, or indirectly through glacier melt, floods, water fluctuation, irregular rainfall, and landslides.  According to a World Meteorological Organization (WMO) report issued in 2022, “a disaster related to weather, climate, or water hazard occurred every day on average over the past 50 years_killing 115 people and causing US $202 million loss daily.”

IMPACTS OF CLIMATE CHANGE

•  Food Insecurity and Lack of access to clean water:

Food security is defined as A condition where “all people, at all times, have physical, social, and economic access to sufficient, safe, and nutritious food that meets their dietary needs and food preferences for an active and healthy life”.Food security does not mean the mere availabilty of food; it’s also about whether the population has enough financial and non-financial resources to have access to sufficient amounts of high-quality food. Climate change and related environmental conditions like drought and floods adversely affects the ability to grow sufficient food for rapidly increasing population resulting into malnutrition and inflation. Soil Moisture necessary to yeild maximum food crops is lost in the scorching temperature and heat waves. Also, flood water washes away the top fertile layer of soil leaving the land barren. To make use of such land, chemical fertilizers are used which although helps in sufficient crop production yet its hygeine is not guaranteed. On one hand, available food is not sufficient to fulfill the needs of growing population whereas, on the other hand the food that is available is either contaminated or unhygeinic.

Right to health and well-being of citizens is violated. According to Food and Agriculture Organization (FAO), the massive flash floods of 2022 in pakistan destroayed 1.7 million hectar of Agricultural land. It swept away 65% of its  main food crops including 70% of its rice leaving 14.6 million people into extreme hunger and food insecurity. A  report published after Sustainable Developments summit held in New York in September 2023 entails that: an estimated 194 million children born between 2023 to 2030 will have stunted growth which means that at least one children born each second is estimated to be stunted.

According to World Health Organization, drought have become he most serious hazard to Agriculture in most part of the world. Water Scarcity and lost of soil moisture due to extreme heat waves and rising temperatures reduce soil fertitility and threatens food security. Afghanistan can be cited as as example in this regard. Afghanistan has been facing extreme drought since 2021 that thas crippled food production and deprived 20 million people of food. The country’s water supply relies on winter precipitation of glaciers and snow. This has been severly affected by global warming in recent years and has resulted into one of the worst droughts in the history of Afghanistan.

Ethiopia is another case in sight that is facing its worst drought in decades. The adverse weather conditions brought about by El Niño (a weather phenomenon that takes moisture-laden clouds away from the land) have led to two consecutive failure of rainy seasons. According to UNICEF, drought conditions in Ehiopia have increased malnutrition in children by 20%.  As per the projections from the ensemble of global climate models (GCM), by the 2050s, the increased crop water demand and intensified ET brought on by global warming will reduce the surplus of water resources (precipitation-ET) by 4% to 20% and significantly increase the irrigation water demand during crop growth periods.As a result of increased water demand, decreased agricultural output, and decreased water supply in areas where irrigation is most important, In this agriculture will be significantly impacted by climate change.

• Health and evolving disease patterns

According to the World Health Organization (WHO), climate change is responsible for at least 150,000 deaths per year, and this figure is anticipated to treble by 2030. Climate change is anticipated to result in an additional 250,000 deaths each year from malnutrition, malaria, dengue fever, diarrhoea, and heat stress between 2030 and 2050. As the earth heats, weather patterns change, extreme weather events become more frequent and severe, and ecosystems adapt and ultimately causes diseases like Airborne, Waterborne, Foodborne, Vector borne and even effects the Mental health of individuals.Through its effects on vectors, or the creatures that spread diseases from one host to another, climate change has a substantial impact on disease patterns. These vectors can spread geographically as a result of rising temperatures and changes in precipitation, which will enable them to flourish in new regions. For instance, warmer weather can encourage the breeding and spread of mosquitoes, which are known to transmit diseases like malaria and dengue fever, in areas where they were previously rare.According to the International Panel on Climate Change, global warming will have an impact on human health, particularly in tropical countries.  

Flooding cause heavy metal and bacterial contamination of drinking water which results into water and vector born diseases such as Typhoid fever, cholera, Diarrhoea, Malaria, Dengue, skin infection, eye disease, Gastrointestinal disease, acute respiratory infection etc. Floods also raises risks on physical health of individuals such as injuries, malnutrition and mental health problems such as hypertension, anxiety, psychological distress and in extreme cases people even resort to commit suicide. In September 2023, A disease epidemic in Libya’s northeast, where floods have already killed 11000 people, might spark a second deadly crisis due to water contamination and a lack of sanitation, according to UN experts on the support mission in Libya. Already 150 people suffered diarrhoea after drinking contaminated water in Libya. During the 2022 devastating floods in Pakistan, the National nstitute of health confirmed 41746 cases of Dengue as of October 2022. It also affirmed that 75% of people seeking medical assistance across Pakistan were diagnosed with Dengue. Aedes Aegypti, a female mosquito is a vector for the spread of Dengue. Floods created many water bodies where virus careers can breed, hence spreading it to more people.  Climate Change and Global Warming cause dire health consequences that are mostly fatal.Soaring temperatures make people vulnerable to Heart ailments because in hot climate cardiovascuar system has to work harder to keep the body cool. Further, Hot temperature increases ozone concentration which can damage people’s lung tissues and cause complications for Asthama patients and those with lung disease. . Hypermania and Heatstroke can also be fatal if left untreated.

• Displacement and loss of livelihoods:

Since the 1980s, scholars have clearly linked the issue of environmental change with human migration, defining ‘environmental refugees’ as people who are forced to leave their homes, temporarily or permanently, due to the danger, impact, or effects of a hazard. Or, in the case of environmental change,Environmental deterioration, which is fueled by things like deforestation, soil erosion, and pollution, has severe repercussions on communities and frequently leads to evictions and loss of livelihoods.In 2015, Africa has more countries affected by displacement than any other continent or region, with more than 15 million internally displaced people. As a result, farmers may be forced to give up their traditional means of subsistence, worsening poverty and food insecurity. Air and water pollution can also negatively impact fisheries by making them unsuitable for supporting aquatic life and, as a result, depriving fishing communities of their main source of revenue. Environmental deterioration can also increase the frequency and severity of natural disasters like landslides and floods, rendering formerly inhabited places dangerous for human occupancy. In 2015, there were 27.8 million new displacements in 127 countries, according to the 2016 Global Report on Internal Displacement, about the same number of people living in New York City, London, Paris, and Cairo combined. 8.6 million were associated with hostilities and violence in 28 nations, whereas 19.2 million were associated with disasters in 113 countries.

From the start of the monsoon season in mid-June 2022 to Nov. 18, 2022, floods affected at least 33 million people and killed at least 1,739 people in Pakistan, and 20.6 million people requested humanitarian relief. Therefore, the only way to stop this loss is to educate everyone about climate change and activities that contribute to it so they may take safeguards.

RIGHT TO LIFE AS ARTICULATED IN INTERNATIONAL TREATIES:

Right to life is a Jus Cogens norm described as “the supreme right of the human being”. Article 3 of the Universal Declaration of Human Rights, which stipulates that “everyone has the right to life, liberty, and security of person,” was the first to acknowledge an international right to life. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) states that “every human being has the inherent right to life.” The law will defend this right. No one shall be arbitrarily deprived of his life” Similarly, Article 2 of European Convention on Human Rights provides that

The right to life of all people shall be guaranteed by law. No one can be intentionally deprived of his life unless in the execution of a Court sentence following his conviction for a crime for which the penalty is stipulated by law.

This means that none can even try to end the life of any person. Governments should take reasonable steps to protect life by enacting laws to protect their citizens. Because The Governments and public authorities are bound to keep in consideration the health and well-being of the citiizens while making any decision or policy and they must refrain from such polimaking as affects the health and life-expectancy of its people. But unfortunately, states in order to seek economic benefits compromise the health of not only its own citizens but also that of the people of its neighboring and regional countries. Installation of Mining projects, burning fossil fuels to generate Energy, massive industrialization, carbon emissions and extensive use of non-renewable energy sources snatches away the rights of individual to breathe in clean air and have access to safe food and water.

CLIMATE CHANGE AND SOCIAL JUSTICE:

Climate Change is deeply intertwined with socio-economic inequalities. The poorest and most vulnerable communities such as Low-Income and Coastal Communities, Rural Farmers, Agricultural Workers, Women, Children, Elderly and Disabled Individuals, Displaced Populations and Developing Countriesbear the brunt of  climate change impacts despite contributing least to the crises.

On a broader terms, climate change compel us to address the issues of inequality on many levels such as between rich and poor countries and between generation. Lack of adaptation techniques and advanced scientific technology, geographic location makes developing countries prone to suffer the worst repercussions of Climate Change. According to a report issued in November 2022, the least developed countries (LDCs) contribute less than 4% of global carbon emissions while accounting for 69% of global mortality from climate-related disasters over the last 50 years. Richer countries have more resources for reducing and adjusting to the effects of climate change through early warning systems, climate resilient infrastructure, Air purifiers, advanced sanitation and health services etc. In contrast, developing countries lack the financial resources and institutional capacity needed to adapt to climate change and recover from the damage it causes. Over the last half-century, climate change has exacerbated state inequality by 25%, with economic decline in hotter poorer countries and economic growth in cooler wealthier countries. Many emerging nations, are celebrating their economic successes in terms of GDP growth without taking into account environmental issues or the well-being of those with low incomes. These inequalities and vulnerabilities raise up the voices for social, economic and environmental Justice with the victims demanding compensation for the loss and damage inflicted upon them by the activities of developed countries because it threatens their right to life and dignity. Seeking Justice, several countries have demanded annual compensation to be paid by the developed countries to enable them to rehabilitate and recover from the damages of Climate Change.

CLIMATE COMPENSATION, A SUFFICIENT LEGAL REMEDY?

Climate compensation was chosen as an agenda item for the first time at the United Nations Climate Change Conference COP 27 in Sharm-al-Sheikh, Egypt, in November 2022, and parties unanimously decided to give loss and damage funding for vulnerable countries affected hard by climate disasters. The annual fund is intended to make developing countries resilient to climate change effects (caused by developed countries) and rehabilitate from its loss and damage. Although the step is welcoming but this is not a sufficient legal remedy as it imposes limited accountability on the perpetrators of Climate Change and lacks future course of action to mitigate carbon emissions. Moreover, the responsibility of the utilization of these funds for intended purpose is left upon the Government of the injured state wherein procedural discrepancies and rampant corruption make the transmission of funds to the grassroots level for the rehabilitation of the affected population quite questionable. A state has a customary international liability under International Law to guarantee that its operations do not hurt other states. Hence, apart from compensation, other legal remedies can be invoked by vulnerable states that bear the brunt of the activities of developed countries and endure more despite contributing least to the crises. It will be covered in further detail in the following sections.  However, at this point, it is vital to understand how humans have right to a clean environment and to what extent such rights can be enforced.

INTERNATIONAL LAW AND RIGHT TO A CLEAN ENVIRONMENT:  

Keeping in consideration the above-noted inequalities, vulnerabilities, and social injustice, an international Law field concerning particularly to the problems of environment and climate-induced damages suffered by countries and communties contributing least to the crises and holding polluters accountable for the irreversible and inter-generational crises. The United Nations General Assembly has passed a number of environmental resolutions. Following the Stockholm Conference in 1972, the United Nations Environment Programme (UNEP) was founded. This laid the path for the evolution of environmental protection instruments and conventions. The UNEP developed a number of Environmental Initiatives including 1985 Vienna Convention for the protection of the Ozone Layer, 1987 Montreal Protocol and the 1992 convention on Biodiversity. There is now a global human right to a clean environment. The preamble to the Stockholm Declaration of the United Nations Conference on the Human Environment 1972 stated that the environment was essential to the enjoyment of basic human rights, including the right to life, i.e. adequate living conditions in a quality environment that allows a life of dignity and well-being. According to Article 24 of the African Charter of Human and Peoples Rights,

“all people shall have the right to a generally satisfactory environment favorable to their development.”

While Article 11 of the Additional Protocol to the American Convention on Human Rights of 1988 stated that

everyone has the right to live in a healthy environment, and states parties shall promote the protection, preservation, and improvement of the environment,

Article 29 of the Convention on the Rights of the Child of 1989 expressly states that the objective of child education should be to build and cultivate respect for the natural environment. The Rio Declaration, adopted during the 1992 United Nations Conference on Environment and Development, declares that human beings are at the center of issues for sustainable development. They are entitled to a healthy and productive life in harmony with the nature. An important stage has been reached with the adoption of the Aarhus convention on acess to information, public participation in Decision making and access to Justice in Environmental matters 1998. The convention expressly states that proper environmental protection is required for the enjoyment of basic human rights, including the right to life. It denotes parties’ recognition of their responsibility to their own citizens. Consequently, Non- Governmental Organizations and Human Rights Activists have sought climate litigation in different national jurisdictions as is dicussed in the following sections.

CLIMATE LITIGATION IN NATIONAL JURISDICTIONS:

Prior to 2015, there had only been nineteen rights-based climate cases filed anywhere in the globe. More than 148 climate claims concerning human rights have been brought in 38 national jurisdictions since 2015. Some of them are as follows:

Urgenda VS Netherland case: The Urgenda Foundation filed a lawsuit against the Dutch government for insufficient efforts to reduce greenhouse gas (GHG) emissions. Urgenda claimed that the Dutch government’s failure to commit to a greater emission reduction was unlawful because it violated citizens’ Human Rights, particularly their right to life, within the legal context of the United Nations Framework Convention on Climate Change, including the Kyoto Protocol and Paris Agreement, as well as European Union and Dutch law.  The Hague District Court ruled that the Dutch government violated its duty of care to its residents by neglecting to take adequate climate change mitigation measures.  It also urged the government to reduce greenhouse gas emissions by at least 25% below 1990 levels by 2020. The first instance verdict was later confirmed by both the Hague Court of Appeal and the Netherlands Supreme Court.

Leghari VS Pakistan: This case came on the heals of the Urgenda v. Netherlands case. Mr Asghar Leghari, a law student and farmer in Punjab, filed a petition at the Lahore High Court over the government’s failure to implement the National Climate Change Policy 2012, which focused on climate resilient measures and adaptation programs.  The Petition was brought as an instance of public interest litigation. The petitioner stated that his right to life and right to human dignity, as contained in articles 9 and 14 of the Constitution, had been infringed, as had the principles of social and economic justice, as a result of the government’s lack of attention on climate issues.The petition was determined by the Lahore High Court to be a writ of Kalikasan, a philippine legal remedy designed to defend one’s constitutional right to a healthy environment.  The Supreme Court ruled that the right to life (Article 9) and dignity (Article 14) in the constitution includes the right to a healthy and clean environment. These rights have such a broad scope that they embrace international environmental concepts of sustainable development, preventive measures, environmental impact assessment, and inter and intragenerational fairness.  

Neubauer VS Germany: In this action, complainants claimed that the German government failed to implement a legal framework to cut greenhouse gas emissions and restrict global temperature rise to well below 2 degrees Celsius over pre-industrial levels, as stated in the Paris Climate Agreement 2015.  The complainants also alleged that the Federal Climate Protection Act’s CO2 emission reduction targets would be insufficient to meet Germany’s obligations under the Paris Climate Agreement. The petition further claimed that the Act does not include any CO2 mitigation measures beyond 2030. The historic Neubauer case decision prompted the government to raise its 2030 greenhouse gas (GHG) emissions reduction target, define additional increases, and push the date of net carbon neutrality to 2045. This extension was ordered in order to impose an obligation to protect future generations’ fundamental rights.

Milieudefensie VS Royal Dutch Shell: Dutch non-governmental organizations (NGOs) have filed a lawsuit against Shell, a major fossil fuel corporation, demanding that Shell align its business strategies with the goals of the Paris Climate Agreement. Petitioners claimed that Shell is one of the world’s worst polluters. The corporation emits nine times more GHGs than the entire Netherlands. Despite recognizing that Climate Change is a severe threat to life on Earth, shell actively oppose climate legislation that could have disastrous consequences. The Court ruled that Shell must reduce its emissions by 45% by 2030. It must respect human rights. Because Shell is a major contributor to catastrophic climate change, it endangers people’s lives. Following the verdict, similar cases against large polluters have been announced in other nations. For example, Total in France, ENI in Italy, and the automobile sector in Germany.

Dejusticia VS the State of Columbia: Twenty-five children and youth filed a lawsuit against the Columbian government, alleging that the government’s failure to limit deforestation in the Amazonian basin (which comprises 35% of Columbian territory) is contributing to global warming and affecting their right to a healthy environment, life, health, food, and water. The plaintiffs underline that future generations will bear the brunt of the repercussions of climate change. As a result, they not only seek the abolition of deforestation, but also an intergenerational plan to attain this aim. The Court agreed with the plaintiffs and ordered the government to establish a “intergenerational pact for the life of the Colombian Amazon,” with the participation of the plaintiffs, affected communities, and research and scientific organizations, to reduce deforestation to zero and reduce greenhouse gas emissions.

Furthermore, citing a 2016 Colombian Constitutional Court judgment that granted rights to a river, the Supreme Court decided that the Amazon basin is also “a subject of rights.” This means that the state is responsible for protecting, conserving, maintaining, and restoring the forest.

ENVIRONMENTAL PROTECTION AND STATE’S RESPONSIBILITY IN INTERNATIONAL LAW:

Pollution generated within a single state has a transnational impact on the environment of other countries. Chemicals produced by factories, for example, ascend into the atmosphere and combine with water and sunshine to form acids. These are transported by the wind and finally fall to earth in the rain, often thousands of miles from the source of the pollution. As a result, the cost of one state’s industrial activity must be borne by the other in the form of climate change and changes in weather patterns, which result in loss and destruction. As a result, cooperation between the polluting and polluted states is required. In the realm of trans-border environmental protection, customary international law imposes numerous key obligations on governments. Article 194 of the Law of the Sea Convention of 1982 provides that governments must take all necessary precautions to ensure that their operations do not harm the environment of other states.

Article 3 of the ILA Montreal Rules 1982 states

“ States are under an obligation to prevent, abate and control transfrontier pollution to such an extent that no substantial injury is caused in the territory of another state.”

Furthermore, parties agreed in the Energy Charter Treaty of 1994, signed by Eastern European, OECD, and Commonwealth of Independent States (CIS), that polluters should incur the cost of pollution, including transboundary contamination, with proper regard for public interests. The polluting state is also required to notify/inform the other state of any activities that are expected to have immediate trans-boundary negative impacts on it. This principle is stated in both the Rio Declaration of 1992 (Principle 18) and Article 5 of the ILA Montreal Rules. In short, international law imposes on states the fundamental duty not to infringe on the rights of other states. Furthermore, the notion of state responsibility holds states liable for violations of International Law. Furthermore, the notion of territorial sovereignty as allowing a state to do anything it wants regardless of the ramifications for other states has long been discredited in international law.

INTERNATIONAL LITIGATION ON TRANS-BORDER ENVIRONMENTAL DAMAGE:

It was held in Island of Palmas case that the concept of territorial sovereignty included an obligation to preserve the rights of other states inside the territory

In another case,Trail Smelter arbitration (USA vs Canada) a disagreement arose between Canada and the United States over sulphur dioxide pollution caused by a Canadian smelter erected in a valley near Washington, which harmed trees and crops on the American side of the border.The Tribunal held that

“under International Law, no state has the right to use its territory in such a manner as to cause injury by fumes to another state”.

In the Corfu Channel case, The International Court highlighted that

“it was every state’s obligation not to allow its territory to be used for acts contrary to the rights of other states.”

The violation of International conventions and treaties allows the aggrieved state to pursue a claim against the violating state, whether through direct action or through resort to International institutions such as mediation, negotiation, arbitration, or pacific settlement of disputes.

Parties to an international dispute can submit a claim under Chapter VI of the UN Charter if they are unable to settle the dispute through other means.  

CLIMATE CHANGE AND INTERGENERATIONAL JUSTICE:  

Carbon Dioxide once emitted into the atmosphere remains in it for hundreds of years. Therefore the creation of nuclear power plants or exploiting minerals with the use of heavy machinery and burning fossil fuels to fulfill the energy needs required for massive industrialization have significant repercussions for many generations to come. Climate Change triggered by such activities not only threatens the right to life of present generation but the future generations are equally (in some cases more highly) affected by the worst repercussions of it despite the fact that they do not contribute to the crises at all. This opens up the debate of inter-generational climate justice.  Principle 8 of the Stockholm Declaration of the United Nations Conference on the Human Environment 1972 stresses the sovereign right of states to exploit their own resources for economic development. But, keeping in view the aforementional rights violation of future generations, principle 3 of Rio declaration adopted at the UN conference on Environment and Development  1992 noted that : right to development must be exercise in a way to equitaby meet the development and environmental needs of present and future generations.

ARMED CONFLICT, ENVIRONMENTAL POLLUTION AND RIGHT TO LIFE:

Since it has been established that there is a universal right to a clean environment to ensure that the right to life is fully exercised, it is vital to analyze the relationship between International Environmental Law and International Humanitarian Law and suggest other legal remedies for climate vulnerable communities in a broader context.

Armed conflicts have long been linked to environmental pollution. Apart from direct deaths, these conflicts keep threatening the right to life of future generations as well as the people of the whole region with a trans-border effect. It also contribute to global warming as the detonation of nuclear weapons emit GHGs into the atmosphere which is the main culprit of Climate Change.

During each air strike, hundreds of tons of CO2 is added into the air. The US war in Iraq and Afghanistan began with air strikes. From 2001 to 2018, pentagon produced 1267 million metric tons of GHGs. In any one year, pentagon’s emissions are greater than many small countries’ GHG emissions.

During the current ongoing armed conflict between Israel and Palestine (October 2023), one can anticipate the environemntal harm caused in 6000 bombs that are dropped by israel on Gaza in less than a week.

The War in Iraq (2003-2011) devastated soil, water and air. The environment polluted with heavy accumulation of radioactive substances such as Uranium 235, Uranium 238, Cesium-137, and cobalt-60 enhanced peoples’ exposure to cancer. Not only present but future generations of iraq as well as neighboring countries were deprived of the means of sustenance for life due to environmental damage inflicted during the armed conflict.

During Yemen War 2017, there was a major cholera outbreak and WHO recorded 1 million cumulative cholera cases. Scarcity of water and destruction of water and sanitation facilities during the 2015 bombing induced water-borne diseases. According to a study conducted by Harvard University, as a consequence of Yemen War, children in many cities of Iraq are suffering from infectuous diseases. Destruction of heath and sanitation facilities, Water and food contamination and air pollution has long term consequences on health with an alarming increase in cholera, gastrointestinal and typhoid fever.

Afghanistan had been in war since 1978. Due to continuous use of explosives and waepons during the war, air quaity has been deteriorated to a significant extent. keeping aside health damage caused by contaminated food and water, poor air quality alone cause 3000 deaths in War-torn Afghanistan annually.

In the War of Ukraine, more than 30% of the protected area including forests have been bombed, polluted or burned. Massive forest fires spread over the large area while attacks on fuel and industrial facilities have caused contamination of agricultural produce and ground water. The smoke, GHG emission and accumulation of radioactive substances in the environment pose several short and long term challenges to health  and right to life of millions on the one hand and further aggravate Climate Change on the other.

In view above, Climate Change and environmental pollution threatening right to life is not only attributable to developmental schemes and industrialization but also armed conflicts.  The scope of International Environmental law is not distinct from International Humanitarian Law because both are two sides of the same coin. Whenever there is a traditional war with use of air tanks and missiles, environmental damage is obviouse and so its long term affects on the climate and right to life.

OTHER LEGAL REMEDIES FOR CLIMATE VULNERABLE COMMUNITIES:

In previous sections, we have discussed about climate compensation as a remedy for climate-vulnerable communities who produce less or zero carbon emissions. Keeping in consideration other activities that cause carbon emissions in belligerent moves such as armed conflicts, air strikes, missiles and use of heavy machinery, we will discuss other remedies that are available to oppressed communities in peace time as well as in war times.  

• United Nations Security Council:

According to article 24 of the United Nations Charter, United Nations Security Council has a mandate to maintain International Peace and Security and it can adopt both pacific and enforcement measures under chapter VI and VIIrespectively against states that pose threat to world peace.Climate Change is the biggest threat to International Peace and Security. Hence, the UNSC should play it’s role to restrict the states from all the activities (whether developmental or belligerent) that cause GHGs emissions and consequently lead to climate change. But the states emitting most carbon are at the permanent seat of the Council which speaks volumes about the stagnant role of UNSC and the reason why a single resolution has not been passed despite worldwide recognition of Climate change as a threat to world peace.

• International Criminal Court:

War crimes are adjudicated before International Criminal Court (ICC). Any Crime which harms the humanity is defined as the war crimes.  Acts causing GHGs emissions during an armed conflict also comes within the ambit of war crime and can be adjudicated before ICC in accordance with Intrenational Humanitarian law and International Environmental laws that guarantees people’s right to a clean environment.

• International Court of Justice:

In most of the UN Conventions, if there is a dispute between two or more countries regarding its interpretation or application, case can be brought by either party to International Court of Justice. The Jurisdiction of ICJ can therefore be invoked by climate vulnerable communities for the breach of an environmental convention and case can be adjudicated by ICJ’s seven member chamber for environmental matters that was established in 1993. But ICJ itself is the judicial organ of the United Nations the whole structure of which is much politicized being inclined to the United States and its close allies. Hence, least developed countries have limited prospects of successful climate litigation against the developed countries before the ICJ.

CONCLUSION:

Climate Change and all the activities that lead to it constitutes a grave violation of universal human rights by depriving people of the basic means of sustenance and natural resources neceassary to live a healthy and prosperous life. Right to a clean environment as a pre-requisite of enjoyment of right to life has been widely recognized in International Law. Also, Islam attaches great importance to the protection of environment and natural resources with a view to carry out inter-generational justice so that the right to life of future generations don’t get violated by the activities of present generation. In one of the hadith, Holy Prophet PBUH is reported to have said: “Do not waste water even if you were at a running stream” (Sunnan Ibn-e-Majah 425). This Hadith impose a duty not only for conservation of water. Rather, it imposes a duty upon all mankind to refrain from all the activities that pollutes or diminish the basic needs of life, thus violating right to life, and a clean environment is no exception to this.   However, larger damage caused to developing states that contribute least in global carbon emissions and their inability to adapt to this challenge gives way to the need of trans-boundary climate justice. Apart from monetary compensation to be paid by industrialized countries, there is a need to operate other legal mechanisms that are available under the international Law to ensure that Climate perpetrators do not escape the garb of accountability and their duty to limit their carbon emissions. Right to life is the supreme right of all individuals. The enjoyment of other social, economic and political rights is contingent upon the enjoyment of right to life. Therefore, climate perpetrators while practicing their right to economic development, right to defense or retaliate in armed conflict must carry out their first and foremost duty of not interfering with the right to life of the masses and future generations who have no stakes either in such development or armed conflict. In case of default, instead of discharging the culprits by mere payment of annual monetary compensation to the climate-vulnerable communities, violators of International law must be held accountable under the relevant mechanisms and penalties and sanctions must be imposed until the breach of environmental conventions continues on their part.

Authors are Students of LLb Part V at University of Sindh, Jamshoro, Pakistan. Can be reached at 

Minahilshaikh97@yahoo.com

 nnazirmaheennazir@gmail.com